HyperLaw Comments Re West Spin Control Press Release
December 26, 1996
Today Brady Williamson, West Publishing Company’s attorney, posted a
press
release on law-lib trying to place West’s spin on the drubbing it
took
from Judge Friedman in his 52 page opinion in United States
v. Thomson and West--much of which was spent deriding West's
copyright claims to star-pagination and the damaging effect
such claims have imposed on its competitors.
Compare what Judge Friedman stated at page 48:
"the court is forced to conclude that the licensing
provision and thus the proposed final judgment ARE BEYOND
'THE REACHES OF THE PUBLIC INTEREST.'"
with what West said about the same order
“a federal district court rejected the objections by
competitors opposed to the transaction and found that the
divestiture provisions of the proposed consent decree
satisfied the public interests requirement of the Tunney
Act.”
Judge Friedman made the following findings regarding West’s
star-pagination copyright claims:
“Like Judge Martin, this court has serious doubts about the
continuing vitality of the Eighth Circuit’s 1986 opinion in
Mead Data in view of the subsequent decision of the Supreme
Court in Feist. . .and it finds unpersuasive the reasoning
in Oasis Publishing.”
* * *
“the Court is concerned that including the star pagination
license provision in the Final Judgment might be construed
as an endorsement of West’s dubious copyright claim.”
* * *
“the weakness of West’s claim and the limited market power
of many of those who must pay the license fee, particularly
now that the most economically powerful critic of West’s
position, Thomson, has lost its incentive to contest the
claim and joins West in advancing it.”
* * *
“The asserted reasonableness of the proposed fees does not
resolve the overarching problem that the establishment of a
court-approved fee schedule gives Thomson/West permission to
profit from its dubious copyright claim while maintaining by
court order significant barriers to entry into the relevant
markets identified in the complaint by smaller publishers,
particularly the CD-ROM market.”
The Court concludes this analysis stating:
“The Court suggests that the public interest would be served
if West and Thomson would agree to amend the license
provisions in the Proposed Final Judgment. . .to provide a
free license to all who request one until West’s copyright
claim is judicially resolved once and for all.”
In West’s press release, Thomson’s president, Brian Hall,
refers to this as “some technical details that have to be
worked out.”
Technical details like free licenses to anyone who wants
them. Good spin control !!!
Judge Friedman, though constrained by the Microsoft case and
compelled not to second-guess the ‘approval’ by the United
States Department of Justice, documented the absurd
positions of the DOJ--positions which will prove in the
short term to be a political and professional embarrassment
to both the Clinton administration and those in the DOJ who
claim credit for this concoction.
It seems by giving deference to the DOJ actions regarding
the insignificant divestitures, Judge Friedman made it
altogether tougher for West and Thomson to challenge the
Judge's “suggestion” that he will not approve a consent
decree unless West and Thomson provide a royalty free
license for star-pagination, at least until the status of
the star-pagination license is judicially determined.
The Judge reviewed many of the comments from opponents and
specifically stated in footnote 1 that
“the Court found particularly helpful the public comments of
Lexis-Nexis and HyperLaw, Edward Jensen [sic], the Reporter of
decisions in California, the American Association of Law
Libraries, Matthew Bender & Company, Inc., Geronimo
Development Corporation, CD Law, Inc., Alois Gross, and
Kathleen Jo Gibson, the Secretary and Clerk to the New
Mexico Compilation Commission.”
HyperLaw is gratified that the Court addressed the concerns
expressed in HyperLaw's comment letters and filings which
severely criticized the license agreement.
Despite this victory, HyperLaw remains concerned that Judge
Friedman, in an apparent effort to bullet proof his opinion,
ignored many clear violations of the Tunney Act. HyperLaw
is considering its options with respect to appeal.
Lexis-Nexis currently has a pending appeal relating to Judge
Friedman's refusal to permit intervention by Lexis-Nexis.
John Morris's September 1996 American Lawyer article on the
merger ascribes the decision to place a star-pagination on
the table as follows:
"Concerned that the talks weren't moving ahead fast enough,
Thomson dropped a bombshell-- making a concession that would
have been unthinkable under the old regime at West: on June
4, in a meeting with Lawrence Fullerton, Craig Conrath, and
other Justice Department lawyers, Thomson's Brian Hall and
his general counsel, Michael Harris, announced that Thomson
would agree to allow anyone to license West's page numbers
under a standard form agreement ..."
In retrospect, the ill-conceived “bombshell” had a delayed
fuse, which ended up exploding in West’s face.
It is also notable that Brian Hall, president of West
Information Publishing Group had previously stated in the
press that Thomson had purchased West for its intellectual
property and that Thomson would vigorously defend the star-
pagination. The corollary apparently is that Thomson-West
will downplay the drubbings it is receiving. One
interesting point: if Judge Friedman asks West to publish
his opinion in Federal Supplement, will West comply, or
will it bury the opinion as it has buried opinions in
Matthew Bender and HyperLaw v. West.
HyperLaw had pointed out in its papers to Judge
Friedman the efforts of West with DOJ support to have a
database treaty adopted that would further engorge its
monopoly position and referred to West stacking the deck on
an ABA subcommittee that promoted database protection. In
November, the Washington Post in an editorial opposed to the
database protection treaty referred to West as its
primary supporter. It now appears that the Patent Office
received 600 comment letters in connection with the database
treaty --- and only 6 supported the treaty. Of the 6 were
West, Lexis-Nexis, and the trade organization dominated by
West, the Information Industries Association. In a National
Law Review article discussing West's loss to Matthew Bender
and HyperLaw in the New York star-pagination and copyright
litigation, West expert-in-residence, Robert Berring was
quoted as follows:
"'People always react to district court decisions,' say
Professor Robert Berring, of the University of California at
Berkeley School of Law (Boalt Hall), who is an occasional
consultant to West. Judge Martin's ruling will be appealed;
if the 2nd U.S. Circuit Court of Appeals affirms, the case
may land before the U.S. Supreme Court, which he says may
follow 'the trend of our national information policy' that
favors protecting electronic data bases."
Ultimately, as discussed elsewhere, the database protection
treaty was withdrawn since defeat seemed imminent. If
Professor Berring is correct and the Supreme Court follows
the national information policy trend as it turned last
week, it will reject West's position. Professor Berring
incidentally filed an affidavit for West in the DOJ case, as
he did as well in numerous other West cases and rule-making
proceedings, and Judge Friedman referred to that affidavit in his
opinion.
ADS
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:: Alan D. Sugarman Federal Appeals on Disc tm CD-ROM ::
:: President Opinions of US Courts of Appeals ::
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